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ReDigi planning on taking ‘first sale doctrine’ case to Supreme Court
By Chris Cooke | Published on Thursday 7 March 2019
ReDigi has confirmed that it plans to take its long running copyright infringement case to the US Supreme Court, but it has asked for a little more time to prepare its formal submission to American’s most senior judges.
The ReDigi company operated a marketplace where people could sell their second-hand MP3s. No one is the slightest bit interested in reselling MP3s online any more, of course, but they were in 2012 when EMI first sued the company.
At the heart of this case is the question of whether or not the so called ‘first sale doctrine’ – the principle under US copyright law that says you can resell a CD without the copyright owner’s permission – should also apply to digital content.
The record industry has always argued “fuck no!”, on the basis that when you resell a CD no new copy of a recording is made. But by definition, when a digital file is transferred from one machine to another, copying has to occur, even if the software facilitating the copying tries to ensure the original copy is deleted at the end of the process.
The courts sided with the record industry in 2013 and then again on appeal last year. Meanwhile ReDigi suspended its operations and sought chapter eleven bankruptcy protection. And then, of course, downloads peaked, the streaming boom began, and the idea of anyone wanting to buy a second-hand MP3 all started to seem a little bit quaint.
But some people think that that core question about the first sale doctrine in the digital age is still important enough to be considered by the highest court in the land, even if the ReDigi business model itself has become redundant.
In theory you need to file a request for the Supreme Court to consider a case – aka a ‘cert petition’ – within 90 days of your appeals court ruling. But with that deadline imminent, lawyers working for ReDigi have asked for an extension to 13 May to get their arguments together and to allow other interested parties to submit their viewpoints.
According to The Hollywood Reporter, in a letter to Supreme Court judge Ruth Bader Ginsburg, ReDigi’s current legal rep wrote: “The petition raises novel and important legal questions about copyright law. These questions include whether, under the first sale doctrine, a person who lawfully acquires a digital file through the internet has the right to resell it”.
It remains to be seen if ReDigi is granted an extension to get its petition filed. And then whether the Supreme Court will hear to case.
